Posted
by
Unknown Lamer
on Tuesday January 22, 2013 @06:01AM
from the stewards-of-knowledge-locked-safe-within-their-walls dept.

theodp writes "The NY Times takes a look at how MIT ensnared Aaron Swartz, but doesn't shed much light on how the incident became a Federal case with Secret Service involvement. Still, the article is interesting with its report that 'E-mails among M.I.T. officials that Tuesday in January 2011 highlight the pressures university officials felt' from JSTOR, which is generally viewed as a good guy in the incident. From the story: 'Ann J. Wolpert, the director of libraries, wrote to Ellen Finnie Duranceau, the official who was receiving JSTOR's complaints: "Has there ever been a situation similar to this when we brought in campus police? The magnitude, systematic and careful nature of the abuses could be construed as approaching criminal action. Certainly, that's how JSTOR views it."' Less than a week later, a Google search reveals, Duranceau notified the MIT community that immediate changes to JSTOR access had to be made lest the University be subjected to a JSTOR 'death sentence.' 'Because JSTOR has recently reported excessive, systematic downloading of articles at MIT,' the post warned, 'we need to add a new layer of access control. This is the only way to prevent recurrence of the abuse and therefore the only way to ensure ongoing access to this valuable resource for the MIT Community.' The post concludes, 'The incidents that prompted this change involved the use of a robot, which is prohibited by JSTOR's Terms and Conditions of Use. ...Continued access to JSTOR and other resources is dependent on the MIT Community complying with these policies.' Hope you enjoyed that freewheeling culture while it lasted, kids — now Everything is a Crime."

Well it is news. The Swartz case has been a discussion topic here in previous articles and this provides a bit more insight into what drove it into becoming a criminal case in the first place; JSTOR pressure on MIT was probably the trigger for MIT's later actions.

All they needed to do is change the focus to make it into a decent FA and being a nice guy allow me to do so:

If MLK or any of the other freedom fighters of the 60s were to pull that same shit today they would have all their rights stripped away as EVERYTHING is a felony now.

Now THAT should have been the focus of TFA, Go to some occupy protest? You end up on a list of possible terrorists and if you are arrested they will pile on as many charges as it takes to make it a felony. Go to some rally and hold up a little sign? Same thing, if the PTBs decide to break it up a good portion of your rights will be stripped away. Do you know how many homeless single mothers we have because of the "zero tolerance" crap they passed in the 90s?If you get busted for pretty much anything in many states including protesting you will end up being able to get ZERO help for the rest of your life, in fact a fucking illegal will have more help than you will, you'll have pretty much zero rights and the cops will fuck with you at will for the rest of your life. "do the crime do the time" simply no longer exists as its "Do a crime do a life sentence as a second class citizen"

It was THIS kind of bullshit that killed the kid, not JSTOR or any other corp. Sure corps now have Godlike powers but those Godlike powers are granted them by a broken corrupted system that has turned into a giant revolving door with so much conflict of interest its not even funny.

After watching Les Miserables recently I actually felt that this is the basis of our legal system. Nothing has evolved since then and we they didn't need big brother to destroy lives, now we have "the system" it's pretty much end game for any form of redemption from any past errors in life, disgusting.

The purpose of "everything is illegal" has been well-known for thousands of years -- nobody can do daily activities to keep themselves alive without kickbacks, and anyone uppity can be easily yanked.

History should give no confidence whatsoever that democracy and freedom of speech have more than a minor impact on this. If anything, it can be worse in some ways since some of the lower-level officials don't feel themselves corrupt, but rather fancy themselves helpful, playing the position of useful idiot for higher officials who do take donations, legal or otherwise. "I'll sic this self-righteous regulator...unless a hefty ransom is paid?"

Valjean's descent from peasant to yellow card carrying convict, after serving 14 years in the gallows for bread theft & repeated escape attempts, is an odd parallel at first glance. In reflection; Both Schwartz and Valjean intentionally broke the law of the land, both offenses seem rather petty to most of their peers, and both faced draconian punishments. Of course, one man was stealing food for his starving sister and the other gent was engaged in idealistic hactivism, but I can see how prosecutorial discretion has the ability to continue our society's descent to a place where being a felon is so ubiquitous it's no longer a Big Red F.

but I can see how prosecutorial discretion has the ability to continue our society's descent to a place where being a felon is so ubiquitous it's no longer a Big Red F.

Oh, don't worry, they'd never let it get watered down to that point. They'll make sure "felon" still makes people think they're horrible people. Kind of like how they label people "sex offender" for a ton of crimes that have nothing to do with sex, but most people would still see that as a mark of a pervert, rather than someone who got drunk and peed in public.

Well, sure, but the courts didn't send Mildred and Richard Loving [wikipedia.org] up the river, and they could have because the were both criminal lawbreakers as well as doubleplusungood crimethinkers.

The FBI and COINTELPRO used to have to do their dirty work in secret, as covert ops.

Thank you sir, you are completely correct. Corps have convinced government at every level that their needs-- for protection of future profits, for protection of trade secrets, for maintaining their own security rubrics, for protecting their IP)-- make it necessary they be able to interpret and prosecute their own lines of inquiry, sanctions, and punishments against citizens. Government at every level (and on both sides of the aisle) is jumping at the chance to hand them anything they ask for, from SOPA passed in secret, to pepper spray for college protesters, to absurd prison terms for the unregenerate such as Aaron Swartz. It's shocking and unsustainable, but it's happening.

The thing is, they don't even need SOPA - as it is now, you could read the same 1980s CFAA (Computer Fraud and Abuse Act) section that was being used to prosecute Swartz even more liberally and make the internet itself illegal because it essentially requires a user to get permission to visit any site (for Swartz they interpreted this section of the law as a violation of Terms of Service).

For that matter, this post is a felony in the United States; under the CFAA, I am technically committing wire fraud by using an alias to (falsely) represent myself. Yep, the CFAA wording is that broad - if we had internet in the 1970s/80s (a failed precursor existed in 1979), we'd have killed it with a massive protest.

A friend of mine was convicted of a crime 20 years ago. Long story short, he slept with the sheriff's daughter (in a small town) who had to that point claimed to her father to be saving it for marriage. Now he is a sex offender. Sure he made some bad choices (he was 17 at the time), but now he not only has a criminal record, but a sex offense. It drove him out of the city, out of the state, and eventually nearly underground. It made it almost impossible for him to get an education and a job, buy a house, start a family--all those normal things we take for granted that in fact stem from our "inalienable" rights. And that was 20 years ago--nowadays that small-town attitude is the norm for anyone trying to express an opinion that The Man finds unsavory. Once the system gets a hold of you, you're lucky if it only ruins your life in the short term.

Without going into too much detail, there were five guys involved and it was consensual (the parents of one of the guys were in the next room; classy). One was 18 and went to state prison for a long time, two went to jail, one of which wound up in prison for violating his parol, and the other (my friend) ended up with a suspended sentence, several years of probation, many hours of community service, compulsory courses, regular drug (and alcohol until he was 21) testing and, of course, a criminal record. The

It was a bit tougher in the 60's than the picture you paint, for starters MLK was assasinated.

Indeed, for people to suggest civil rights activists would be incarcerated today for doing what they did then is just an example of reaching all the way up their asses to make an argument. That act is even worse because it willfully white-washes the horrors of the time, horrors that are no longer present regardless of how they feel about the current status quo.

So far JSTOR has been covered favorably (due to settling and not wanting the government to press charges) while MIT has come off as evil or apathetic at best. This story implies that MIT was itself pressured by JSTOR to go after Swartz or lose their access. That's pretty big news.

No, it sounds like JSTOR was urging MIT to clamp down on JSTOR access, not push to prosecute Aaron.

Kind of like if you own a chain of retail stores, and you tell a store manager to crack down on shoplifting or you're going to fire him, and the store manager shoots the next shoplifter he sees. You didn't tell him to go that far overboard, or shoot anyone, or shoot that one specifically.

JSTOR acted naively, but corrected itself later. MIT acted naively and then stupidly, but realized their mistake too late. Prosecutors acted like prosecutors typically do these days (I.E. tyranically) and a vulnerable kid took the least painful way out.

Mr. Swartz turned over his hard drives with 4.8 million documents, and Jstor declined to pursue the case. But Carmen M. Ortiz, the United States attorney in Boston, decided to press on.

As in MIT didn't "ensnare" anyone. They first overreacted, but then couldn't reach the reset button before Ortiz et al took over and sent all reservations MIT may have had about pressing on and destroying his life straight to/dev/null.

The prosecutors killed Swartz. That's it. While I appreciate the details of exactly what happened within MIT, lets not divert attention away to what this story really is. This should actually be looked as a big fat spotlight being shined on our spectaular legal system that values conviction rates over actual decreased crime rates and political gain at the cost of lives.

Swartz did something wrong, for sure, he used a script to download documents. He was being rude, making the system slower for everybody else.

The DOJ reaction? Slap a 50 years sentence on him.

If that's the prosecutor's reaction, she is certainly not competent for the job she does, she should be fired and the bar association should start an investigation on her.

I think disbarment would be the proper solution. That would be the right level of punishment in her case. She demonstrated very plainly that she doesn't have the understanding of law needed to work on it professionally.

The final outcome of this story is unfortunate and appears to condemn the American Criminal Justice system more than anything else.

Aaron did not do something without consequence however. He broke a trust in a club (People on campus) and spoiled the party for the members of that club. Free access had been granted to members of the club and his actions took that away. The club members are not trusted anymore and have to go through authentication to get at the data now because of his actions.

When you look around at society most of the petty unpleasantness of it all happens because someone was greedy, stupid or criminal. It is a shame that Aaron contributed to this slow slide into the straightjacket, whatever the justification.

He broke a trust in a club (People on campus) and spoiled the party for the members of that club.

Good, lets brand him a felon and then throw him in federal prison for 35 years. That will teach him to cut out the "petty unpleasantness" he was spreading, and stop inconveniencing the People on campus.

Just because the prosecutors were wrong does not mean Swartz was right.

This. Thank you. It is unfortunate that Swartz took his life. He was treated unfairly and with the utmost unjustice, ironically by the DOJ. And he was a brilliant individual. But he did commit a wrong. It does not justify what was done to him (which ultimately led him to kill himself.)

But/. fans need to get this in their thick, stupid, avant-garde-wannabe skulls. He was not on the right, nor what he did - in this specific issue - constituted something positive or promoting of individual rights. This is a criticism of him, rest in peace, on this specific incident. It does not constitute an indictment on Swartz, the person as a whole, nor does it constitute a justification for what the authoritities did to him.

He might have been abused like Valjean, but he was not Valjean. On this issue, he was not.

OTH, the DOJ certainly played the Javert macabre part and relished on it.

Just because the prosecutors were wrong does not mean Swartz was right.

This. Thank you. It is unfortunate that Swartz took his life. He was treated unfairly and with the utmost unjustice, ironically by the DOJ. And he was a brilliant individual. But he did commit a wrong. It does not justify what was done to him (which ultimately led him to kill himself.)

What was the wrong he committed? He was allowed access to the documents he downloaded. The only wrong was that instead of sitting there clicking on each one and clicking save as, he had a script access them and save them. But as to the content itself, he was allowed to have access to it and to save it. Instead of JSTOR, you would have thought the RIAA was behind this.

Just because the prosecutors were wrong does not mean Swartz was right.

This. Thank you. It is unfortunate that Swartz took his life. He was treated unfairly and with the utmost unjustice, ironically by the DOJ. And he was a brilliant individual. But he did commit a wrong. It does not justify what was done to him (which ultimately led him to kill himself.)

What was the wrong he committed? He was allowed access to the documents he downloaded. The only wrong was that instead of sitting there clicking on each one and clicking save as, he had a script access them and save them. But as to the content itself, he was allowed to have access to it and to save it. Instead of JSTOR, you would have thought the RIAA was behind this.

That. Usage of robots was/is prohibited by JSTOR. Whether that makes sense or not is not the issue. If someone doesn't like a service's TOS, the correct thing is not to use that service. It is not a ZOMG-kill-babies, but it is still a wrong.

Obviously, however, the DOJ's javirtistic response was completely unjustified. Considering that all the WS fat cats that almost drove us to the cliff are not in jail, or the people behind unmasking Valerie Plame's cover as a CIA operative (*cough* Karl *cough* Rove *cough*) still remain unpunished, the DOJ's handling of this petty case is an obscene miscarriage of the law beyond description.

Putting a web server on the internet means that people will connect to it with various types of software. You don't get to determine what that software is -- a TOS that says "no IE" is meaningless, and so it one that says "no bots"; and using IE or bots to access that site, in and of itself, is not a wrong.

When you are selling access to your servers to academic institutions you most certainly do get to determine how those users then connect to you, how much they can download, etc. If the academic institution doesn't like those terms they can go elsewhere for the content.

You're so sure Mr. Swartz was not in the right that you preemptively call everyone who disagrees with you stupid, huh?

No, it is publishers who are in the wrong. If you think JSTOR is some kind of saintly, charitable effort, and point to their non-profit status as evidence, I suggest you take a harder look. Research publishing is a huge racket. We, the people, pay for a great deal of research, and then allow these publishers to lock it all up, charge huge fees for access, and bless the whole affair by calling it privatization. That they do it on behalf of a few school rather than for themselves, and that the access fees are in the form of tuition rather than straight up fees, does not make it any less unfair. JSTOR has willingly aided that injustice, providing cover for the schools, until prodded hard.

Do you feel better now? Is 35 years in prison plus a $1 million fine the correct punishment for using a script to download documents?

Is disbarment the correct punishment for applying the law that Congress wrote and failing to use discretion to ignore offenses? Do you understand what "discretion" even means, if you insist that it be mandatory and punishment be applied if it's not used? Do you understand what "hypocrisy" means?

We have an adversarial legal system: the prosecutor throws what he can get away with at the defendant, the defense attorney tries to defend against it, and the judge and the jury make a decision. If the prosecutor overreaches, the case will collapse very quickly.

You are basically right in what you write, except...

Even in your adversarial system, there is neither a reason nor an expectation that the prosecutor should initially be making what were basically frivolous claims that go beyond all sane reason. Sure enough a prosecutor will initially often enough be asking for more than is strictly warranted, but 35 years for using a script to download some files that were intentionally freely accessible within the uni network? That is like asking for the death penalty in a case where someone slapped someone else during a barroom brawl, or something like that. That woman needs a healthy dose of "welcome to reality". Which, in the opinion of many fine and upstanding citizens, she could best get while spending quality time at home after being relieved of a job that is apparently beyond her professional and personal level of competence.

Even in your adversarial system, there is neither a reason nor an expectation that the prosecutor should initially be making what were basically frivolous claims that go beyond all sane reason.

The reason the prosecutor can make those charges is because that's the law. I agree that the law is too strict, but you can't blame the prosecutor for that.

Furthermore, the prosecutor can't just go out and charge whoever he likes, he needs to convince a grand jury that the charges are reasonable. That means a majority of about 20 regular people have to agree that the person should get charged.

Sure enough a prosecutor will initially often enough be asking for more than is strictly warranted, but 35 years for using a script to download some files that were intentionally freely accessible within the uni network?

(1) Swartz was not a student at the university; he broke in and physically hacked into their network.

(2) The files were not "freely accessible"; they were available only under license, and Swartz repeatedly circumvented attempts to kick him off the network. Also, it was likely Swartz's intent to redistribute them.

(3) 35 years is the theoretical maximum when you total up all the charges with maximum penalties. He would likely have faced a few years in prison if found guilty of all charges, about the same as in many European countries.

(3) 35 years is the theoretical maximum when you total up all the charges with maximum penalties. He would likely have faced a few years in prison if found guilty of all charges, about the same as in many European countries.

But he could get 35 years in prison, especially if the judge wanted to make an example of him, which happens more than you would believe. The fact that he could get this ridiculously draconian sentence, which is more than the maximum time permitted for anyone to serve for any crime in many countries, is enough to show how rotten US justice system is.

Furthermore the fact that the prosecutor can throw the whole book on him and charge him of everything he can think about does not mean she is forced to do so. That is the problem with your "adversarial legal system". Prosecutors go out of their way to intimidate and force people into deals, regardless of their culpability, and many many people take those deals forfeiting their right to defend themselves because of the chance of draconian penalties if they do not.

The United States has imprisoned more of its population than any other country in the world. If that's your goal, than the US justice system works great. If you want a free society, the US justice system is reprehensible.

And which legal system do you think works better and is more responsive to citizens?

Well, since the legal system isn't picked off of a menu, how about we just sound off some changes which would "work better and [be] more responsive to citizens"?

Some mechanism should exist which allows laws to be removed from the books without requiring them to be tested in court. For example, an organization like the EFF or ACLU should be able to raise the unconstitutionality of a law without waiting for some poor schm

That is a fallacy. Certainly US is not as bad in executing people as China, for example, but there is little difference between executing someone and sentencing him to 30 or more years in prison, and the amount of executed people in these regimens certainly does not make for the difference in incarceration, actually the number of executions in all those countries is several orders of magnitude lower than the number of incarcerated people in US. Even if you add executions to incarcerations in all those count

Jury nullification isn't a real safeguard either. If you mention it, you get pulled from the jury, and probably held in contempt of court.

Neither are elected judges. The only people who really know whether a judge is unfair are those who stand before the judge. That's always a tiny minority of the electorate, with no ability to affect the outcome of an election.

But he could get 35 years in prison, especially if the judge wanted to make an example of him, which happens more than you would believe.

Not really. He'd then have excellent grounds for appeal, since the judge would have been straying very far from the federal sentencing guidelines.

When media reports a set of charges, they sum together the number of charges and sum together the maximum sentences for all of the charges, leading to something like "12 charges with a maximum of 35 years in prison". But when sentencing, according to the guidelines, you eliminate redundant charges that are for the same criminal act and use the one with the highest

Furthermore, the prosecutor can't just go out and charge whoever he likes, he needs to convince a grand jury that the charges are reasonable. That means a majority of about 20 regular people have to agree that the person should get charged.

This used to be a major safeguard, but has been ineffective for some decades now. A prosecutor can get an indictment from a grand jury, if he wants one, in just about any case: of the circa 20,000 cases brought to a grand jury per year, fewer than 100 will result in a "no bill" (refusal to indict), for an indictment rate of around 99.5%.

This used to be a major safeguard, but has been ineffective for some decades now. A prosecutor can get an indictment from a grand jury, if he wants one, in just about any case: of the circa 20,000 cases brought to a grand jury per year, fewer than 100 will result in a "no bill" (refusal to indict), for an indictment rate of around 99.5%.

And how does the prosecutor do that according to you? Mind control? Hypnosis? Death threats? Of course not. These are two dozen regular people making a careful decision.

You forgot the bit that comes before the trial, where the prosecutor makes terrifying threats in an effort to intimidate the suspect into a guilty plea in the hope of leniency, regardless of actual guilt or likely outcome if it had gone to trial.

You forgot the bit that comes before the trial, where the prosecutor makes terrifying threats in an effort to intimidate the suspect into a guilty plea in the hope of leniency, regardless of actual guilt or likely outcome if it had gone to trial.

Glenn Reynolds recommends the following law changes wrt plea bargaining.

- Ban plea bargains all together, so that every criminal charge filed would have to be backed up in open court.

- Alternatively, âoewe might require that the prosecutionâ(TM)s plea off

You don't get it because you're completely wrong. JSTOR is a subscription service paid for by higher ed institutions for registered students. It's not paid for for the general public. Not saying that's right or wrong, just that your description of it as "public repository" couldn't be farther from the truth.

I really don't understand. JSTOR is public repository, taxpayer funded. Schwartz is a tax payer. Where does the damage come from which justifies 35 years in jail?

It's not that the kid did that much harm, it's that this prosecutorial team saw a chance to put a "computer-crime" multi-decade "easy" conviction (read: student that can't afford a good legal defense) on their resumes for advancement of their careers.

Many, many US prosecutors and DAs don't consider for even a second the lives they destroy as they seek to advance their careers. For some it's fixation/obsession on their career goals that blinds them, for others, they are simply sociopaths who lack any capacity for empathy or sympathy for those they unjustly victimize, even enjoying the suffering of their victims.

They are much like the brutal, violent, abusive cops seen in so many YT videos, and like the cops, have a culture that views such abuses as normal and acts to shield/protect their own.

Well, let's not get into numbers far - even if Swartz would be found guilty only on one charge (and quite possibly more than one), he would still have to spend some time in prison with much more serious offenders. And, statistically speaking, his chances of acquittal were dim, to say the least. Well, OK, prisons in US are all happy gardens of bunnies-and-rainbows, and all inmates (and, more importantly, guards) are perfect gentlemen with bow ties and monocles. Staying in prison would help Swartz both physically and psychically... in some perfect fantasy world. But that's still not the point.

Quick quiz: when he gets out he is viewed by potential employers as a) a brilliant young man, who just made some wrong decisions in the past, but it's all forgiven and forgotten; or b) a felon, found guilty of several computer-related crimes? Guess which viewpoint would be prevalent? And what perspectives such future holds for him? Plus, even if he would spend not 35, but "only" 3-5 years in prison - how would he catch up with current technologies? Restore his skills and social connections? Do you want to be considered a friend of a known felon? So how many friends would he still have after this? So it's not the case of 50, 35 or even 5 years of prison - it's the case of maybe not ruined, but seriously maimed life anyway.

And "if the prosecutor overreaches, the case will collapse very quickly" - if that's true, why did 97% of accused in federal cases plead guilty in 2011? Not one case of "prosecutor overreach", right? Total transparency, responsibility and fairness all around, and every prosecutor is really afraid of his case collapsing, sure... in some perfect fantasy world.

he would still have to spend some time in prison with much more serious offenders

That's the law. Take it up with lawmakers. Don't blame the prosecutor when the public demands stupid laws (and some of these laws are stupid). In addition, Swartz knew the law and deliberately broke it.

Quick quiz: when he gets out he is viewed by potential employers as a) a brilliant young man, who just made some wrong decisions in the past, but it's all forgiven and forgotten; or b) a felon, found guilty of several computer-related crimes? Guess which viewpoint would be prevalent?

Doesn't seem to have hurt Robert Morris. He did roughly the same thing minus the copyright infringement, got convicted, and now is a professor at MIT.

he would still have to spend some time in prison with much more serious offenders

That's the law.

If you're going to fall back on the "its the law", you have to enforce the law all the time. But our justice system has discretion built into it. That's why e.g. John Corzine is still a free man. But why does Corzine benefit from that discretion and Swartz does not? Wealth and power, obviously. That's the problem here. Justice isn't blind.

Trials are an extremely important part of the American legal system. The right to a fair trial by a jury of your peers is the bedrock of the American legal system. I'm not convinced the practice of plea bargaining, which is deliberately intended to short circuit this system, was ever a good idea.

Even if a plea bargain is a good idea in some cases, the way its used these days to create "Trial by Prosecutor" is absolutely ghastly. In other words, the prosecutor uses certain flaws of our legal system that are unrelated to Constitutional requirements (the costs, for example, that will bankrupt an ordinary person, and the fact that public defenders are often unqualified and routinely mishandle cases) to dispense with Trial by Jury altogether, even if the option still technically exists (violating the spirit of the law if not the letter of the law).

Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts. -- Sentencing Shift Gives New Leverage to Prosecutors [nytimes.com]

Besides this, we now have a similar situation in Civil Trials, where binding arbitration agreements are forced on parties as soon as they try to get involved in any commercial transaction.

What all this ends up being is an end run around the Constitution. If the Constitution had intended Trial by Jury to be rare, and most cases to be decided by a single appointed official, they would have set up the Constitution that way. In fact, many of the people involved in setting up the United States had bad memories of the Court of Star Chamber [wikipedia.org], in which no one was allowed to argue their cases and arbitrary rulings were the norm.

If one thing should come out of the Aaron Swartz case, and one thing only, it is this: The rules for civil disobedience in this country have changed. With juries out of the picture, stunts like what Swartz pulled at MIT are far more difficult ways to create legal precedent. Which is important because Civil Disobedience against unjust laws has a long history of moving change in this country when the legislative process was moving slowly or not at all (or in the wrong direction, as it is now).

Now, there were other periods in history where civil disobedience was extremely dangerous, which led to more extreme forms of civil disobedience than peaceful protests. The political movements in previous centuries knew what kind of justice awaited them in the courts, so they used the gun or the bomb to make their points, rather than sit ins or other forms of peaceful protest. Returning to those bad old days is honestly not something I'm looking forward to.

I think you are confusing the prosecution with the defense. It is not the prosecution's job to "throw what he can get away with at the defendant". The prosecution's interest should be to prosecute someone who they believe has committed a crime worthy of prosecution. It is certainly not the job of the jury to determine overreach. The judge is the arbiter of the law, and the jury is merely the arbiter of the fact.

The responsibility of defense is closer to your notion, as famously stated by Justice Byron W

If what you say is true, then the prosecution was asking for a 70-fold increase in prison time in exchange for the constitutional luxury of a trial by jury. This is a solid indication that 35 years should have qualified as "cruel or unusual". IOW, your facts seem to support the popular narrative as well: Schwartz's blood is on the hands of the prosecutor.

I disagree honestly its better for society if people like Swartz are martyred.

As another poster pointed out everything is a felony now. You probably commit felonies everyday without even being aware. If something is illegal and someone does it they should be prosecuted. If we don't want to prosecute people for doing than it should not be illegal in the first, and the law needs to get off the books. Right now we have a legal briar patch, that can be used to find a reason to mess up someones life anytime

Isn't that a failure of our lawmakers to set reasonable prison terms for crimes? The prosecutor doesn't set the maximum sentence for any crime, they just charge people with the laws written by the legislative body for their jurisdiction.

If that's the prosecutor's reaction, she is certainly not competent for the job she does, she should be fired and the bar association should start an investigation on her.

I think disbarment would be the proper solution. That would be the right level of punishment in her case. She demonstrated very plainly that she doesn't have the understanding of law needed to work on it professionally.

So, you're saying you're in favor of ridiculously high punishments that have no relationship to what the accused did?

I do find the difference in opinion that rises to the top of Slashdot discussions on various topics very interesting.

In this case, the overriding opinion is that the acts of the prosecutors are responsible for the death of Swartz.

However, in at least two other cases, that of Amanda Todd and Megan Meier, the overriding opinion in those Slashdot stories was that the person or people accused of bullying were not responsible for the deaths of the victims, as suicide victims usually have underlying issues.

The duality of Slashdot is very interesting, but so is how very different, very strong opinions and very opposing opinions can still rise to the surface.

Power. The federal court has power of us. Peers over the internet do not. "Cyber bullying" is amongst equals while the power imbalance between an ethical and upstanding digital rights activist and federal prosecutors is laughable. To curtail cyber bullying we would need to impose draconian rules enforced over the Internet, while to curtail federal bullying we simply need to slap a political official on the wrist. And we can do that second one, in theory, because we live in a democracy. But to get the right people to start slapping, even halfheartedly, the masses have to get in a huff and thrash a little.

Also, did you think that Slashdot is one homogenous group? We're not even a loose coalition. We're individuals that occasionally function as a hive-mind.

> The decision whether to charge a defendant, and with what -- is almost entirely discretionary.... > Hope you enjoyed that freewheeling culture while it lasted, kids — now Everything is a Crime."

Once to be charged with a crime there needed to be a criminal intent. No longer. There are so many ridiculous laws on the books now that you can't be a citizen without breaking some laws, and zealous prosecutors can pluck those laws out of obscurity to target anyone the don't like, or even just choose some unlucky sap they pick on to boost their career.

There's a good book by ex-FBI cop & criminal lawyer Dale Carson who explains these people have run out of big time criminals to prosecute, and so now the justify their existence by filling jails with poor saps who meet this criteria, or they would be laying off cops, judges and prisoners for lack of business: http://www.amazon.com/Arrest-Proof-Yourself-Ex-Cop-Reveals-Arrested/dp/1556526377 [amazon.com]

This has been going on for a long time. Aaron is the first person to draw it to the wider public attention: "Legions of government lawyers inundate targets with discovery demands, producing financial burdens that compel the innocent to surrender in order to survive. Silverglate, a civil liberties lawyer in Boston, chillingly demonstrates how the mad proliferation of federal criminal laws — which often are too vague to give fair notice of what behavior is proscribed or prescribed — means that "our normal daily activities expose us to potential prosecution at the whim of a government official." Such laws, which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes. The more Americans learn about their government's abuse of criminal law for capricious bullying, the more likely they are to recoil in a libertarian direction and put Leviathan on a short leash."

The problem is not that they can. As they can target everyone, they could pick specifically the people that causes them trouble (and maybe pick others to not be so obvious). Or maybe not the visible leaders, that maybe could have cash enough in a way or another for a good defense, but the followers (or take their houses [bloomberg.com] anyway).

"There's a good book by ex-FBI cop & criminal lawyer Dale Carson who explains these people have run out of big time criminals to prosecute, and so now the justify their existence by filling jails with poor saps who meet this criteria,"----

In a word, that's bull. The world is filled with big time criminals. The problem is that they are "too big to prosecute". Look at HSBC. They laundered money, knowingly, for drug dealers, terrorists, and Iran (helping to fund their nuclear program).

Even after a full investigation, and HSBC admitting to criminal activity to the tune of billions of dollars, wanna take a guess how many people went to jail?

If you guessed anything other than ZERO, you are wrong. HSBC was fined 1.9 Billion Dollars, and then let off the hook. HSBC, incidentally, can make up for that fine over 4 weeks with some slightly more risky trading, and perhaps charging their customers a few pennies more per transaction.

The point is: Prosecutors don't go after "big targets" to make their name, because it's much, much tougher to win a case against an organization that can spend more in lawyers than the entire GDP of your district.

As a result, there have been no prosecutions of anyone guilty of market manipulation for the "Great Recession", there have been no prosecutions for "robosigning foreclosures", there have been no prosecutions for insider trading, there have been no prosecutions for LIBOR, there have been no prosecutions for HSBC.

So, Prosecutors spend their time being High School Bullies, going after targets they know they can win because the little guy has no resources to fight. That's why we have the highest incarceration rate in the world, and our jails are filled with petty criminals -- people busted for a few ounces of Pot. But the real criminals drive in limos.

The intent does not need to be to kill. Intending to merely cause injury but ending up killing someone would be manslaughter. Inadvertedly killing someone in the process of committing some other crime as well (called constrcutive manslaughter IIRC). Even criminal negligence resulting in death (counts as manslaughter) has criminal intent, in that it implies a conscious (and criminal) decision to neglect ones duty. So: the definition of various types of manslaughter do indeed imply criminal intent.

So manslaughter wasn't a crime? Because by definition, there can't have been a criminal intent (otherwise it would have been murder).

That's a variation on criminal negligence. There was no intent to kill, but there was intent to take insufficient care to ensure that nobody was killed. The "insufficient care" is (of course) rather tricky, but that sort of thing is why there is trial by jury for serious crimes and not just an administrative action by the prosecutor's office.

Copyright violation should never be a criminal offense. It should be purely civil. Society already grants these people a monopoly for what amounts to forever, and now they want us to enforce it with our criminal justice system as well?

Dale Carson points out there are many, many cases of this going on all the time, but it's been under the public radar. Most of these people get eaten up by the system and no one cares except their family who by then are bankrupted by the lawyers if they could afford them. Public Defenders don't have time for these so-called petty

We do need more protection from federal government overreach. But Swartz is a lousy poster boy, because physically breaking into a network and committing massive copyright violation really is a criminal offense in many places, and it was reasonable to charge him.

Whether or not he should be prosecuted is one thing, but for (presumably) one count of Breaking & Entering, and multiple counts of Copyright Violation, the circus that grew up around Swartz before the state dropped those original charges was disproportionate.As for the punishment, Massachusetts State Law on the subject of Breaking & Entering with intent to commit a felony (what he was originally charged with) has this to say:"Section 16. Whoever, in the night time, breaks and enters a building, ship

The more details that come out the less sympathy I have for the legal troubles Swartz found himself in. He was smart enough to know going into this that there would be legal repercussions. It's possible he even ran his plan by Lessig, with Lessig explaining that it was wrong and he shouldn't do it. Barreling ahead anyways, he only decided not to do it at Harvard.

The problem here is Stephen Heymann. He is the real zealous procsecutor here

He has been on a crusade for years for "computer crime" juicy publicty [huffingtonpost.com]

I remember about a week or so ago Anonymous leaked some long diatribe written by Stephen Heymann about lowering the bar on what defines computer crimes etc. I can't find it now. This guy is on a crusade to make a name for himlself.

Mod parent useful. Stephen Heymann sounds like a nutbag and that all he gives a shit about is prosecuting people. Worry about finding a name for the crime later.

> During another investigation in the 1990s, Heymann wanted Harvard to place a electronic banner on its intranet telling users they were being monitored, as Network World reported. He said would allow the feds to monitor the network without getting a court order. Harvard disagreed, saying it respected the privacy of its users. According to his Ha

The prosecutor [Heymann] even claimed Watt had psychopathic tendencies and was trying to bring down the entire financial system, Watt told Business Insider.Those accusations came after Watt admitted to liking the movie "Fight Club," according to Watt."I think that he had a very bombastic manner of describing the crime and the alleged calculating manners of the co-defendants," Watt said.

With their resources, MIT could do the same thing in-house instead of outsourcing.

MIT is a wealthy institution and could afford to free considerable information without being adversarial. The solution isn't "lone rebels freeing the info", but using massive resources to break it loose instead.

It could be a random brand name for all I know, like Yahoo or Twitter. Basically, it's a company that makes money providing students access to digitized scholarly article.

Oh, they have this on the about page:

We are deeply saddened to hear the news about Aaron Swartz. We extend our heartfelt condolences to Aaronâ(TM)s family, friends, and everyone who loved, knew, and admired him. He was a truly gifted person

I've heard this complaint before that JSTOR is greedy. Can anyone put some numbers to this? In one article I saw it said that MIT paid $50k a year for access to JSTOR. $50k from an institution like MIT? That to me seems like nothing.

Is JSTOR essentially to the humanities what arXiv is to physics etc.? It seems like arXiv is a far friendlier system: the only penalty for repeated automated downloads is "we will ban your subnet for a while to protect our CPU power, since each download requires some rendering from TeX source". The thought of arXiv seeking prosecution of someone is just absurd.